Proportionality and Deference in Investor-State Arbitration - Balancing Investment Protection and Regulatory Autonomy

In this study, Caroline Henckels examines how investment tribunals have balanced the competing interests of host states and foreign investors in determining state liability in disputes concerning the exercise of public power. Analyzing the concepts of proportionality and deference in investment tribunals' decision-making in comparative perspective, the book proposes a new methodology for investment tribunals to adopt in regulatory disputes, which combines proportionality analysis with an institutionally sensitive approach to the standard of review. Henckels argues that adopting a modified form of proportionality analysis would provide a means for tribunals to decide cases in a more consistent and coherent manner leading to greater certainty for both states and investors, and that affording due deference to host states in the determination of liability would address the concern that the decisions of investment tribunals unjustifiably impact on the regulatory autonomy of states.

List of contents

1. Introduction; 2. Proportionality and deference in theoretical perspective; 3. Operationalizing deference in the context of proportionality analysis: comparative approaches; 4. Methods of review employed by investment tribunals in regulatory disputes; 5. The development of an institutionally sensitive approach to proportionality analysis in investor-state arbitration; 6. Other issues affecting the method and standard of review in investor-state arbitration; Conclusion.

About the author

Caroline Henckels is Senior Lecturer in Law at Monash University, Melbourne, and was previously Vice-Chancellor's Postdoctoral Research Fellow in Law at the University of New South Wales, Sydney.

Summary

Investment treaty arbitration urgently requires a certain and consistent way of deciding regulatory disputes that pays due respect to the competing imperatives of investment protection and regulatory autonomy. Caroline Henckels argues that in such cases investment tribunals should employ proportionality analysis in combination with an institutionally sensitive standard of review.

Product details

• Authors: Caroline Henckels, Caroline (University of New South Wales Henckels, Henckels Caroline
• Publisher: Cambridge University Press ELT
• Languages: English
• Product format: Hardback
• Released: 30.09.2015
• EAN: 9781107087903
• ISBN: 978-1-107-08790-3
• No. of pages: 266
• Series: Cambridge Studies in Internati; Cambridge Studies in International and Comparative Law
• Subjects: Social sciences, law, business > Law > International law, foreign law; POLITICAL SCIENCE / International Relations / General, LAW / International, LAW / Public, LAW / Arbitration, Negotiation, Mediation, LAW / Commercial / International Trade, International Relations, LAW / Alternative Dispute Resolution, Arbitration, mediation & alternative dispute resolution, International economic & trade law, Arbitration, mediation and alternative dispute resolution, Public international law: economic and trade